Commonwealth v. Kennedy

151 A.3d 1117

COMMONWEALTH of Pennsylvania, Appellee

v.Unique S. KENNEDY, Appellant

No. 680 EDA 2015

Superior Court of Pennsylvania.

Submitted August 29, 2016

Filed December 6, 2016

Evan T.L. Hughes, and Joseph T. Schultz, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, and Kelly B. Wear, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, OTT and MUSMANNO, JJ.

OPINION BY OLSON, J.:

Appellant, Unique S. Kennedy, appeals from the judgment of sentence entered on February 20, 2015. In this case, we consider whether the trial court abused its discretion in admitting lay opinion testimony from a crime scene investigator regarding bullet trajectory. After careful consideration, we hold that the trial court did not abuse its discretion by admitting the lay opinion testimony. We also clarify the interaction between Pennsylvania Rules of Evidence 404(a)(2)(A) (defense introduction of evidence of a pertinent character trait) and 608(a) (admission of evidence of witness' character for truthfulness to counter attack). Based upon our analysis, we conclude that the trial court properly excluded evidence relating to Appellant's truthfulness. As we also find Appellant is not entitled to relief on his remaining claims, we affirm.

We have summarized the factual background of this case as follows:

These charges arose out of a dispute over a woman that both [Appellant's co-defendant, Stephon Harris ("Harris"),] and the decedent had an interest in. On July 9, 2013, at approximately 9:45 p.m., John Anderson ("Anderson") was shot and killed in the entryway of his apartment. The entryway at this location had a street entrance door and a second door that led up to the single, second floor apartment that Anderson shared with Naheem Hines ("Hines"), and Mohamad Khardani ("Khardani"). Khardani owned the building that housed the apartment, and a pizza shop located below the apartment where Khardani worked.

Earlier that day, Anderson had exchanged a series of text messages and phone calls with [Harris' girlfriend] when [Harris] intercepted his girlfriend's phone call and spoke directly to Anderson. An argument ensued over the phone and Anderson said, "I'm at 72^nd, do what you gotta do." [Harris] was visiting his friend Davon Kennedy ("Davon") and Davon's cousin[, Appellant,] when he recounted the argument that he had with Anderson over the phone. [Harris] said that "Anderson needed to go." The three men walked to a store then [Harris] and [Appellant] told Davon they would catch up with him later, and walked away together.

That evening, Hines was returning to the apartment when he saw two males who appeared to be attempting to open the apartment's street level entry door. Though the males were unfamiliar to Hines, he was later able to identify [Appellant] as one of the males. As Hines approached, the two males drifted away from the apartment door and towards the pizza shop. Hines asked Khardani, who was working in the pizza shop at the time, if he knew the two males. Khardani recognized [Harris] as a repeat customer of the pizza shop and greeted him. ... Khardani did not recognize [Appellant].

[Appellant] asked Hines whether Anderson was at home and said "Ace" was looking for him. Hines replied that he did not know but would check when he went upstairs. Upon arriving upstairs, Hines learned that Anderson was indeed at home along with Tanesha Brooks–Mapp ("Brooks–Mapp"). Hines delivered the message that there were two males downstairs who were looking for Anderson. Hines, Brooks–Mapp[,] and Anderson went downstairs to the main entry of the apartment. Anderson was unarmed. As soon as Anderson began to open the interior door, five to six gunshots rang out and Anderson fell to the floor in the doorway of the apartment. Hines was able to see that [Appellant] was the shooter and saw the two males with whom he had spoken earlier running across the street, away from the scene of the shooting. Khardani was inside of the pizza shop when he heard shots. Khardani looked up to see [Harris] and the male he was with running from the scene and Anderson lying on the ground.

Commonwealth v. Harris , 2016 WL 6649244, *1 (Pa. Super. Nov. 10, 2016) (unpublished memorandum) (internal alterations, ellipses, and citation omitted).

The procedural history of this case is as follows. On September 30, 2013, the Commonwealth charged Appellant via criminal information with first-degree murder,¹ conspiracy to commit first degree murder,² carrying a firearm without a license,³ carrying a firearm on the streets of Philadelphia,⁴ possessing an instrument of crime,⁵ attempted murder,⁶ aggravated assault,⁷ and recklessly endangering another person.⁸ On February 9, 2015, Appellant orally moved in limine to exclude the lay opinion testimony of Officer Jacqueline Davis, a crime scene investigator, whose proposed testimony included her observations regarding the angle of trajectory of bullets fired through the door of Anderson's apartment. The trial court denied the motion that same day.

At trial, Officer Davis opined that, based upon the bullet holes in the door and the location of evidence inside the foyer, the apartment door was partially open when Appellant opened fire. Appellant testified on his own behalf, stating that he shot Anderson in self-defense. Appellant sought to call witnesses to testify as to his character trait of truthfulness. The Commonwealth objected to this character evidence and the trial court sustained the Commonwealth's objection. On February 20, 2015, a jury found Appellant guilty of first-degree murder, conspiracy to commit first degree murder, carrying a firearm without a license, possessing an instrument of crime, and recklessly endangering another person. The trial court immediately sentenced him to an aggregate term of life imprisonment without the possibility of parole. This timely appeal followed.⁹

Appellant presents five issues for our review:

1. Whether the Commonwealth did not prove, by sufficient evidence that Appellant acted with the required malice for any of the charges and, hence, the Commonwealth has failed to prove the elements of the crimes[ and hence a]n arrest of judgment must be awarded[?]

2. Whether Appellant must be awarded a new trial as the [trial c]ourt denied Appellant's motion in limine to preclude Officer Jacqueline Davis from providing an opinion that the front door at the crime scene was open at the time of the shooting[?]

3. Whether Appellant must be awarded a new trial as the [trial c]ourt precluded the introduction of defense evidence following [Hines' testimony?]

4. Whether Appellant must be awarded a new trial as the [trial c]ourt precluded the introduction of character evidence[?]

5. [Whether, i]n the alternative, Appellant must be awarded a new trial as the greater weight of the evidence does not support the verdict...?

Appellant's Brief at 3.¹⁰

Appellant's first issue challenges the sufficiency of the evidence.¹¹ "Whether sufficient evidence exists to support the verdict is a question of law; our standard of review is de novo and our scope of review is plenary." Commonwealth v. Walls , 144 A.3d 926, 931 (Pa. Super. 2016) (citation omitted). "In assessing Appellant's sufficiency challenge, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that the Commonwealth proved [each] element of the crime beyond a reasonable doubt." Commonwealth v. Ansell , 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). "The evidence need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Commonwealth v. Ford , 141 A.3d 547, 552 (Pa. Super. 2016) (citation omitted).

Appellant argues that there was insufficient evidence to convict him of first-degree murder. In order to convict a defendant of first-degree murder, "the Commonwealth must [ ] demonstrate[ ] that[ ] a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill." Commonwealth v. Ovalles , 144 A.3d 957, 969 (Pa. Super. 2016) (internal quotation marks and citation omitted).

Appellant only challenges the sufficiency of the evidence relating to the elements of malice and specific intent.¹² As our Supreme Court has repeatedly held, a jury may properly infer malice and specific intent from the fact that a victim was shot multiple times. SeeCommonwealth v. Chamberlain , 612 Pa. 107, 30 A.3d 381, 394 (2011) (citations omitted) (malice); Commonwealth v. Hughes , 581 Pa. 274, 865 A.2d 761, 793 (2004) (specific intent). As noted above, Appellant shot Anderson multiple times. Thus, the evidence was sufficient to convict Appellant of first-degree murder.

Appellant's second, third, and fourth issues challenge the trial court's evidentiary rulings. We review the trial court's evidentiary rulings for an abuse of discretion. Commonwealth v. Tyack , 128 A.3d 254, 257 (Pa. Super. 2015) (citation omitted).

In his second issue, Appellant argues that the trial court erred by allowing Officer Davis to offer a lay opinion that the door was slightly open when Appellant shot Anderson. Officer Davis, a member of the crime scene unit of the Philadelphia Police Department, testified that she placed rods in the bullet holes of the door. She testified that the only logical conclusion based upon the bullet trajectories, as determined by the rods placed in the bullet holes, was that the door was slightly ajar when Appellant shot Anderson. As the Commonwealth did not designate Officer Davis as an expert witness, Appellant moved in limine prior to trial to bar this lay opinion testimony. The trial court denied the motion and permitted Officer Davis' testimony during trial.

Lay opinion testimony is governed by Pennsylvania Rule of Evidence 701, which provides...